Retired judge: Give locals control over drug cases

California has serious crime to think about and serious cases to prosecute. Yet the state’s laws continue to force the courts to spend time on felony prosecutions of what are often petty drug possession cases. It’s time for this to change. With state courts reeling from devastating budget cuts, there is a real need for greater flexibility in allocating scarce court resources.

Unlike at the federal level and in 13 states across the nation, California law specifies that possession of heroin or cocaine for personal use is always a felony – even in the most minor cases. Unlike misdemeanor cases, each single one of these felony cases requires a costly preliminary hearing. This means that California courts are forced to conduct thousands of preliminary hearings every year just for drug possession.

Fortunately, Sacramento is poised to take action. Senate Bill 649 will give counties greater flexibility and control over their public safety resources by granting prosecutors discretion in charging for possession of a controlled substance for personal use. On a case-by-case basis, prosecutors would decide whether to charge a misdemeanor or a felony. This means the pettiest cases would no longer have to take up so much precious court time.

According to the Legislative Analyst’s Office, counties spend $160 million statewide each year on felony drug possession convictions. As counties work to implement Criminal Justice Realignment, which transferred authority from the state to the county over most people convicted of low-level offenses, there isn’t a penny or a jail bed to be squandered.

As a Federal Magistrate Judge from 1996 to 2005, I handled arraignments and took pleas in hundreds of drug cases. However, I rarely saw cases for mere possession of small quantities of drugs for personal use. In the federal system, court resources are rarely spent on these cases. California state courts could benefit from this approach as well.

SB 649 is a modest revision that will give counties more flexibility to manage their criminal justice populations and more freedom to allocate limited resources, including jail space, court dockets, and recidivism-reduction services such as drug treatment, job training and housing. Importantly, SB 649 preserves the option to charge drug possession for personal use as a felony when warranted. The bill will make no changes to penalties for sale, transportation, manufacture, or possession for sale.

SB 649 supports re-entry and is therefore also a wise public safety move. A felony conviction can do more harm than good when it creates barriers to employment, housing and education – key stabilizing factors that help people stay straight. Supporting successful re-entry is the most effective way to lower recidivism, prevent crime and combat California’ over-incarceration crisis that costs state taxpayers like you and me billions of dollars each year.

Across California, courts and law enforcement agencies are being challenged to rethink the way the business of public safety is conducted. SB 649 will allow counties to make their own choices about how to most wisely allocate court and other public safety resources in order to hold offenders accountable, prevent crime, and protect community safety.

Stiven, a retired U.S. District Court judge, teaches at California Western School of Law.